The following is the response of the Web Standards Project to the
recently proposed W3C Patent Policy Framework as found here:
http://www.w3.org/TR/2001/WD-patent-policy-20010816/
The response may be found on the home page of our site, as well as
in a permanent location on the site (URLs below).
http://webstandards.orghttp://webstandards.org/opinion.html
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The WaSP would like to commend the W3C for taking the initiative to
make explicit its policy regarding patents and Web technologies. Such
policies have long been the norm in other industries, as well as in
various other standards bodies.
However, the W3C policy we have been shown is not explicit, but
dangerous and counterproductive.
By opening the door to the adoption of patented technologies as Web
standards, the W3C is turning its back on its own long-standing
charter. Among the stated goals of that mission are:
"...by enabling new forms of human communication and opportunities
to share knowledge...[to] make these benefits available to all
people, whatever their hardware, software, network infrastructure,
native language, culture, geographical location, or physical or
mental ability..."
"...designing and promoting open (non-proprietary) computer
languages and protocols that avoid the market fragmentation of the
past..."
The W3C has never been a voice for the masses, and has never claimed
to be. But this latest draft policy gives the impression of placing no
stock in the individuals and groups that made the Web possible in the
first place. These individuals developed the Web and then made it free
for all to share and build upon, creating tools, protocols and
languages used by hundreds of millions worldwide.
By contrast, the Web of the future will be an even more corporate
affair -- a long nightmare of so-called "defensive" software patents
giving rise to more and more litigious players.
Even if you reject as naive the idea that information wants to be
free, there's no reason the channels it flows through shouldn't remain
free. Instead, we see a Web fraying at the edges, as the core
stagnates and the rest is locked in bitter battles between patent
holders and independent developers.
Regardless of anyone's opinion of the propriety of issuing patents for
software, it is clear that patents will continue to be applied for,
and continue to be issued. The W3C should take a strong stand against
the use or adoption of any patented technology as a Web standard,
unless such patents are guaranteed to be and remain royalty-free, for
use by all.
Such a stand will maintain the open nature of the Web, while allowing
the participants to continue to innovate and the lawyers to continue
to protect their employers' assets. At the same time, it will enable
independent developers to continue expanding the variety of
interoperable implementations without the threat of legal action.
Remember the text of your own Member Agreement:
"[W3C] ...agree to grant and hereby grant to Member a non-exclusive
royalty-free, irrevocable, right and license to use, reproduce,
modify, translate, distribute, publicly display and publicly
perform all computer software and documentation described in
Section 7 (b) throughout the world..."
We are not unreasonable, nor are we anti-corporate. We recognize that
some battles cannot be won, and that the interests of larger members
of a consortium often override those of everyone else. If the
Reasonable And Non-Discriminatory (RAND) clause cannot be dropped
altogether, we demand:
1. that the policy clearly define such terms as "core", "essential",
"non-essential" with respect to Recommendations, existing and under
development, and to future plans for the Web's design and ongoing
evolution
2. that caps be placed on any per-use fees that may be charged as a
result of a RAND license
3. that the policy explicitly state that such technology will be
licensed royalty-free, if possible, to any non-profit group or
individual who wishes to provide an interoperable implementation of
the technology in question
To do otherwise is to sell short the very audience your mission
defines, by limiting the deployment of new Web technologies only to
those with a clear profit motive (whether direct or indirect) and the
extensive developmental and legal resources of major corporations.
To do otherwise is to thereby stifle the very innovation, operability
and universal access you so loudly proclaim as your core values.
We applaud the addition of patent disclosure requirements to the
processes by which open standards are crafted. We are, however,
extremely curious as to what remedies the W3C policy offers in the
case of a breach of good faith by one of its Members.
As the policy stands, there are none, and we are to take it on faith
that not only will Members disclose patents and applications they may
not have had a hand in submitting, but if they do not, the Working
Group will be disbanded and the technology abandoned in its current
form.
This unacceptably weak link in the policy essentially allows any
Member to sabotage any W3C technology simply by filing for a patent
application.
We suggest that any Member found in violation of the disclosure
clauses of the policy be barred from participation in or communication
with the other Members of the various W3C Working Groups for a period
of no less than two years. This should extend not only to the
individual representative, but to all representatives of any Member
determined to be in bad faith, whether currently involved in Working
Groups or not.
Such violators should also be required to abandon all claims to RAND
licensing for the technology in question, and instead make the
technology royalty-free as a demonstration of their commitment to open
standards and fair and open cooperation.
We thank you for opening this process up to public comment, and for
extending the comment period (however briefly) so that we could
actually read the proposed policy and reply. Let's make sure that the
same spirit of openness and receptivity to the audience you claim to
serve is not threatened again.
We understand that the "inherently difficult twists and turns of some
of the patent licensing language" may have led us into error with
respect to our interpretation of the policy. If so, please either do
your best to explain the twists or to remove them altogether. We are
counting on W3C to continue "leading the Web to its full potential."
Steve Champeon,
on behalf of the Web Standards Project
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